INSTITUTIONS OF THE DEAD: LAW, OFFICE AND THE CORONER Marc Benjamin Trabsky ORCID Identifier: orcid.org/0000-0002-7123-8062 Submitted in total fulfillment of the requirements of the degree of Doctor of Philosophy April 2017 Melbourne Law School, University of Melbourne ABSTRACT This thesis writes a history of the institutional life of coronial law in the nineteenth and twentieth centuries. The office of coroner has occupied an important role in the common law since the twelfth century. Its status may have waned, its duties may have changed, yet its enduring concern with investigating the causes of death has preserved its vital role in the juridical governance of the dead. This thesis offers a historical account of the modalities by which coroners have occupied their offices and formed lawful relations with the dead in Australia. It does so by examining coronial law in terms of its technologies and its institutional formations. The chapters that follow explore a range of lawful technologies, including place-making, architecture, super visum corporis, manuals and files, each of which became attached to the conduct of the office of coroner in the nineteenth and twentieth centuries. The thesis thus offers an institutional history of the coroner by thinking through how technologies have attached the dead to coronial institutions, how coroners have performed their offices, and how they have assumed responsibilities for caring for the dead. - 1 - DECLARATION I make the following declarations: i. The thesis comprises only my original work towards the degree of Doctor of Philosophy. ii. Due acknowledgement has been made in the text of this thesis to all other material used. iii. The thesis is fewer than 100,000 words in length, exclusive of the bibliography and appendices. Marc Benjamin Trabsky - 2 - ACKNOWLEDGMENTS To write a doctoral thesis involves learning from others, writing alongside others and a training in the conduct of scholarly office. I am indebted to the long mentorship provided by my supervisors at Melbourne Law School, Associate Professor Shaun McVeigh and Associate Professor Peter Rush. I thank Shaun and Peter for their intellectual generosity, critical support and pastoral care. Peter has been an invaluable mentor since undertaking my LLB and I first met Shaun as I was completing my MPhil. I thank Shaun for being an early supporter of my research interests in the dead and Peter for directing me towards the Old Melbourne Cemetery underneath the Queen Victoria Market. Both Peter and Shaun have challenged me, not only in supervising my thesis, but in their work as well, to think, write and live with law. I thank them for their patience while I embarked on my academic career. Since 2011, I have enjoyed working with a diverse group of doctoral students and early career researchers at Melbourne Law School: Tom Andrews, Olivia Barr, Kathleen Birrell, Jason Bosland, Claire Oppermann, James Parker, Laura Petersen and Cait Storr. And since then a number of my colleagues have joined other law schools in Australia and elsewhere: Madelaine Chiam, Julia Dehm, Sara Dehm, Maria Elander, Luis Eslava, Jake Goldenfein, Vicki Huang, Edward Mussawir, Yoriko Otomo, Connal Parsley and Amanda Scardamaglia. I want to thank all of them for establishing, fostering and contributing to a dynamic, collegial and creative community for writing a doctoral thesis. I also want to acknowledge the mentorship I received in both research and teaching opportunities from Professor Andrew Kenyon, Dave McDonald, Professor Megan Richardson, Juliet Rogers and Professor Alison Young at The University of Melbourne. - 3 - From 2013, I worked on my doctoral thesis while also juggling my duties as a Lecturer at La Trobe Law School, La Trobe University. I want to first thank Professor Paula Baron for taking a chance on employing me, but also Professor Patrick Keyzer for providing material support throughout the later stages of the process. I am fortunate to work in a dynamic law school that actively promotes law and humanities research as well as interdisciplinary scholarship. I have thus enjoyed the encouragement, enthusiasm and support of my colleagues: Tobias Barkley, Fleur Beaupert, Madelaine Chiam, Pascale Chifflet, Kirsty Duncanson, Maria Elander, Professor Anne-Maree Farrell, Emma Henderson, Anita Mackay, Jill Murray, Tarryn Phillips, Hannah Robert, Savitri Taylor, Raul Sanchez Urribarri and David Wishart. Lastly, I want to especially thank at La Trobe Law School for their friendship, generosity and emotional support: Laura Griffin and Fiona Kelly. This thesis was supported by an Australian Government Research Training Program Scholarship. I also received a living allowance through a Melbourne Research Scholarship from 2011 to 2012. I have received funding to present research based on my doctoral thesis at various conferences, seminars and workshops since 2011 from Melbourne Law School Research Support Funds, La Trobe Law School Conference Funds and La Trobe University. I presented draft versions of Chapter 3 while as a Visiting Scholar at Kent Law School, University of Kent in 2016. I thank Connal Parsley for his hospitality during my visit, but also for his comments on my chapter. I also want to thank Professor Maria Drakopoulou, Hyo Yoon Kang, Ed Kirton-Darling, Rose Parfitt and Nick Piska for participating in the conversations that followed the seminar. This chapter was additionally presented at the Law Futures Centre, Griffith University and Centre for Social Ethics and Policy, Manchester University in 2016. I thank Professor John Flood and Ed Mussawir for inviting me to Griffith University, - 4 - and Professor Margot Brazier, Professor Ian Burney and Danielle Griffith for their engaging conversations around my work at Manchester University. I wish to thank staff at the Public Records Office of Victoria, Victoria Police Museum, Victorian Institute of Forensic Medicine Library, State Library of Victoria, Special Collections at the Baillieu Library, The University of Melbourne and the Wellcome Library in the United Kingdom. I published an early version of Chapter 1 as Marc Trabsky, ‘Walking With the Dead: Coronial Law and Spatial Justice in the Necropolis' in Edward Mussawir and Chris Butler (eds), Spaces of Justice: Positions, Passages, Appropriations (Routledge, 2017). This chapter has benefited from conversations following conferences as far back as 2012, but more recently during invited seminars at Flinders University and the University of Newcastle in 2016. I thank Professor Margaret Davies, Maria Giannacopoulos, Angela Melville and Kevin Sobel-Read for their insightful comments. I published an early version of Chapter 2 as Marc Trabsky, 'The Custodian of Memories: Coronial Architecture in Nineteenth Century Melbourne' (2015) 24(2) Griffith Law Review 199. This chapter benefited from the intimate conversations during a workshop on ‘Spaces of Justice: Grounds, Walls, Openings’ at Griffith University, 12-13 December 2013. I want to thank Ed Mussawir and Chris Butler for inviting me to the workshop on North Stradbroke Island, but also to all the participants at the workshop for their encouraging words and astute suggestions. Lastly, I published an early version of Chapter 4 as Marc Trabsky, 'The Coronial Manual and the Bureaucratic Logic of the Coroner's Office' (2016) 12(2) International Journal of Law in Context 195. I want to thank Rebecca Scott Bray for inviting me to participate in the special issue and her long support of my research in coronial studies. For their stimulating and thought-provoking conversations about art, philosophy and life, I thank my dear friends: Bella Li, Ohad Kozminsky and - 5 - Agata Wierzbowski. I also want to thank again my friend, Laura Griffin, for her indispensable copy-editing of my thesis. Lastly, I want to show my appreciation to my parents, Karen and Morris Trabsky, who encouraged me from an early age to write, to keep on writing, and to learn from my mistakes. They have unconditionally supported my pursuit of higher education. I acknowledge their financial sacrifice, material contributions and emotional support. My sister Dani Trabsky has also given me inspiration over the years and if it was not for her own academic pursuits I may never have followed this pathway. Jacinthe Flore has been my most ardent interlocutor, reviewer and supporter throughout this project. She has been often patient, sometimes tough, but always caring. I couldn’t have completed this enormous task without her and I cannot capture in words the incredible support that she has given me. I thank her for the love that we share. I dedicate this thesis to the memory of our ancestors. - 6 - TABLE OF CONTENTS Introduction 8 Chapter 1: Law in the Necropolis 45 Chapter 2: Inventories of Coronial Architecture 78 Chapter 3: Super Visum Corporis 108 Chapter 4: The Bureaucratic Logic of the Coroner’s Office 142 Chapter 5: Dead Records Office 172 Conclusion 198 Bibliography 205 - 7 - INTRODUCTION [O]ne does not get rid of the dead, one is never finished with them1 Many events precipitated the abolition of the deodand in the nineteenth century. The most notable was the Sonning Cutting railway accident of 1841, which profoundly affected the political appetite for legislative reform. On 24 December 1841, a goods train travelling from London Paddington to Bristol Temple Mead derailed near Reading, resulting in nine deaths and injuring sixteen passengers. The coronial inquest that immediately followed the incident found that a bank slip in the cutting lead